M v NEW ZEALAND POLICE [2018] NZHC 1230

M v NEW ZEALAND POLICE [2018] NZHC 1230 [29 May 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000160[2018] NZHC 1230BETWEEN MAppellantAND NEW ZEALAND POLICERespondentHearing: 22 March 2018 and 24 May 2018Appearances: N R Rout for the AppellantC J Bernhardt for the Crown on 22 March 2018; andS Bicknell Young for the Crown on 24 May 2018Judgment: 29 May 2018JUDGMENT OF DUNNINGHAM J[1] On 3 October 2017, the appellant was sentenced to two years and two months'imprisonment for a variety of charges.1 He now appeals on the basis that the sentenceis manifestly excessive because the Judge double counted a factor. The appellant alsowishes to introduce new evidence related to his health which, he submits, justifies anadditional discount. A further issue was raised when this matter was first called on22 February 2018. That was whether the appellant should also receive a discount forassistance he could give the Police on an unrelated criminal matter. The hearing ofthe appeal was adjourned to allow the respondent to consider the merits of thisassertion.1 The charges were: two counts of burglary, theft from a car, driving while suspended, unlawfulpossession of explosives, possession of utensils, breaching the Medicine Act 1968, breachingcommunity work and two counts of breaching intensive supervision.[2] If he is successful in reducing his sentence to a short term of imprisonment onany of these grounds, the appellant seeks leave to apply for home detention.[3] Leave is required to bring the appeal as it was filed shortly after the time limitfor filing the appeal. However, the circumstances of the late filing are fully explainedby counsel for the appellant, Mr Rout. I accept that there is no prejudice to therespondent and that leave should be granted.Background facts[4] In July 2016, the appellant was sentenced to nine months' intensive supervisionfor obtaining by deception. Then, in November and December 2016, he was sentencedto community work. He failed to comply with those sentences and was charged withtwo breaches of intensive supervision and one breach of community work. Theappellant was charged for two failures to report in March 2017. In June 2017, theappellant failed to report for community work as directed.[5] In early July 2017, the appellant engaged in a series of offences. He enteredan enclosed yard and took a moped valued at approximately $2,000. The appellantentered a dwelling house via an insecure door and took various items valued at over$1,500. In the early hours of the morning, the appellant broke a car window, enteredthe vehicle and took clothing and personal items valued at $1,100.[6] The appellant was found driving a stolen vehicle while suspended. Whenstopped by police he was found in unlawful possession of ammunition, utensils, andnon-prescribed medicine.District Court decision[7] The Judge considered that the burglaries were the lead charges. He regardedthe gravity of the offending as serious given that the properties were suburban, thestolen goods were of substantial value, and the offending was purely for personal gain.He set a starting point of 18 months' imprisonment.[8] The Judge found that the theft from the motor vehicle was also serious. Heapplied an uplift of four months to recognise that. He gave a further four month' upliftfor all the other offending.[9] The Judge considered that the fact the burglaries were of dwelling houses wasa statutory aggravating factor, so he applied a three month uplift. He applied twofurther three month uplifts to recognise that the July offending was while the appellantwas on bail and subject to sentence, and for the appellant's extensive criminal history.That brought the sentence up to 35 months.[10] The Judge then gave full credit for the early guilty pleas, reducing the sentenceto 26 months.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 It is only appropriate for this court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.3SubmissionsAppellant[12] The appellant submits that the sentence was manifestly excessive because theJudge double counted the fact the burglaries were of dwelling houses. He mentionedthis both when setting the start point, and when giving an uplift for aggravating factorsof the offending. Mr Rout, for the appellant, submits that, having factored it into theinitial starting point, there was no call for an uplift. The difference is significant forthe appellant as it elevates the sentence from a short term to a long term sentence.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Ripia v R [2011] NZCA 101 at [15].[13] The appellant also seeks to introduce evidence that he has been recentlydiagnosed with cirrhosis of the liver and Hepatitis C, Genotype 3. The prison is unableto facilitate the treatment the appellant wishes to source for his Hepatitis C through a"Buyers Club". Mr Rout submits that this evidence meets the test for admission onappeal and should give rise to a further discount on compassionate grounds.[14] Finally, Mr Rout advised that his client had information in relation to a seriouscrime and he wished to assist the police as a confidential informant. The informationwas relayed to his client from a third party. Although it is information given afterinitial sentencing and does not relate to his own offending, there is clear procedure foraffording the appellant a discount to his sentence in these circumstances.4Furthermore, he says the appellant has put himself in danger by disclosing thisinformation to the police and that, of itself, warrants a discount.[15] The police have now considered the statement made by the appellant. Theycannot, at this stage, say that he has provided real and tangible assistance, but ratherthe information will be the subject of "ongoing assessment" as it does "tie in" withother information the police are aware of. That said, the Police acknowledge the"effort and intent" of the appellant in providing a statement.[16] Mr Rout accepts, in those circumstances, that there could not be a substantialdiscount for assistance to authorities but, as a matter of policy, such assistance shouldbe encouraged by a modest discount. In the appellant's case, a discount of only twomonths would bring the sentence to a length where leave to apply for home detentioncould be granted.[17] In the event his sentence is reduced to two years or less, the appellant seeksleave to apply for home detention. Two factors prevented the appellant beingsentenced to home detention in the District Court. The first was the length of sentence.The second was that no suitable address was available. However, the appellant hasrecently reconnected with his parents. They reside in a small rural community, whichis away from the influences he has had in Christchurch. The appellant's parents wishto help him and are offering to support him in their home after release.4 R v Accused (293/92) (1993) 10 CRNZ 397.Respondent[18] In respect of the alleged double counting of an aggravating factor in setting thesentence for burglary, Ms Bicknell Young queries whether there was a doublecounting. The Judge referred to the burgled properties simply as "suburbanproperties" in setting a starting point before taking into account aggravating factors.He then referred to the fact they were "people's homes" as an aggravating factor whichis where he took into account that they were dwelling places. In any event, the21 month starting point (including the uplift) for two residential burglaries was wellwithin range and, indeed, could have been higher.[19] The respondent highlights the case of Arahanga v R, where the Court of Appealheld that dwelling house burglaries at the relatively minor end of the scale tend toattract a starting point of approximately 18 months to two years, six months'imprisonment.5 In that case a four year starting point was upheld for two dwellinghouse burglaries carried out in the early hours of the morning where two offenderswere involved. One of the houses was occupied and a van was unlawfully taken, alongwith high value items. A nine month uplift was also upheld which took into accountthe appellant's three previous burglary convictions other violent offending and that hewas still subject to sentence.[20] In Hetariki v Police, I upheld a starting point of 18 months' imprisonment fora daytime dwelling house burglary where the appellant gained access to and tookproperty worth only $150.6 An increase of four months was given for another daytimedwelling house burglary where the appellant did not gain access. An uplift of12 months was given to reflect the appellant's criminal history, which included15 previous burglaries. The respondent submits that these cases show that a 21 monthstarting point (including the uplift) for two residential burglaries was well within rangeand, indeed, could have been higher.[21] Ms Bicknell Young also referred to R v Columbus to support theappropriateness of the eight month uplift for the other offending.7 There, a six month5 Arahanga v R [2012] NZCA 480 at [78].6 Hetariki v Police [2015] NZHC 2461.7 R v Columbus [2008] NZCA 192.uplift was given for two charges of theft under $500 and charges of possession of acannabis pipe and leaf. Counsel submits that the offending here was far more seriousso the eight month uplift was justified.[22] As the sentence imposed was well within range and all the other uplifts wereorthodox, the overall sentence could not be said to be manifestly excessive.[23] The relevance of the new evidence on the appellant's health issues wasaddressed at the March hearing. The respondent's view was that nothing raised in thefurther evidence provided warranted a discount in sentence.[24] In terms of the discount sought for assistance to authorities, Ms Bicknell Youngpointed out that, as long as the appeal judgment was suitably anonymised, there couldbe no real threat to the appellant's safety. In addition, as no tangible assistance hadbeen provided, it would set a "dangerous precedent" to afford a discount simply forpassing on what is, at this stage, unsubstantiated information about a possible crime.AnalysisShould the new evidence be accepted?[25] In order for new evidence to be received on appeal, it must be shown to befresh, credible and cogent.8 Evidence which the appellant knew at the time of trial isunlikely to qualify as fresh evidence.9[26] The information about the appellant's health has only been discovered sincethe trial, so it is fresh evidence. Although it has not been tendered in affidavit form,the evidence as to whether the appellant's preferred treatment can be provided to himin prison appears to be credible as far as it goes, as it is from an Otago CorrectionsFacility nurse. The content is relevant to the personal circumstances of the appellantand would have been considered by the Judge had it been available at the time ofsentencing.8 R v Bain [2004] 1 NZLR 638 (CA) at [22], endorsed by Noble v R [2010] NZSC 85 at [2]; Lundyv R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].9 Fairburn v R [2010] NZSC 159 at [33].Does the new evidence affect the sentencing exercise?[27] However, the evidence does not satisfactorily address what treatment he is ableto receive in prison for his diagnosed medical condition, nor what consequences willresult if the treatment his family wish to source through a "Buyers Club" is notreceived. While it has been confirmed that he cannot receive that treatment in prison,no details are supplied about what the proposed treatment is or its efficacy, nor is thereinformation about what the consequences will be for the appellant if he does notreceive it.[28] In any event, the Corrections Act 2004 obliges the Department of Correctionsto assess a prisoner's medical needs when he or she is received at the prison and toprepare a management plan for that prisoner.10 The prisoner is also entitled to receivemedical treatment that is reasonably necessary.11 Given these statutory obligations, Iconsider that I can assume that medical treatment that is reasonably necessary tomanage the appellant's medical conditions will be provided.[29] A reduction in sentence has been found to be appropriate where imprisonmentwill increase the suffering which a medical condition will otherwise produce, or whereadequate and appropriate care cannot be provided within the prison system.12Substantial reductions have been made in circumstances where the defendant hasextreme ill health and a low life expectancy, or where the defendant has disabilitieswhich the prison would struggle to deal with.[30] However, it is not clear on the limited evidence provided how the appellant'shealth will be affected by being in prison or by being denied access to what theCorrections facility medical staff describe as an "off-licence medication". I have nobasis therefore for concluding that a shorter sentence should be imposed on medicalgrounds.10 Corrections Act 2004, ss 49 and 51.11 Section 75.12 R v S CA75/94, 21 June 1994.Was the sentence manifestly excessive?[31] I accept there is some uncertainty as to whether the Judge double counted thefact that an aggravating feature of this offending was that the burglaries were ofdwelling houses. The distinction between his reference to "suburban properties" as arelevant factor to setting the initial starting point and then to "people's house" as anaggravating factor is not clear to me. However, I concur with the respondent that theend starting point reached of 21 months was well within range for this type ofoffending having regard to the guidance in Arahanga. I therefore do not consider,even if there was double-counting, that the starting point was too high.[32] The appellant does not take issue with the other aspects of the sentenceimposed by the Judge and I accept that they are within the available range.Should there be a discount for assistance to authorities?[33] As the Court of Appeal noted in R v Accused, "[t]he principle that assistancegiven to the authorities, whether connected with the offence for which the appellantwas dealt with or otherwise, merits recognition in sentencing is clearly established".13[34] Furthermore, the Courts have recognised that assistance given after sentencingcould still be relevant and warrant a reduction on appeal. The rationale for the Courtsgiving recognition to co-operation with authorities is simply that the public interest isserved by obtaining information or assistance regarding criminal activity.14[35] As Whata J said in Mori v Police, the question of a discount for assistance toauthorities is a matter of discretion having regard to:15(a) The gravity of the offender's own offending;(b) The nature of the offence or offences that the offender has helped toclear up;(c) The nature, extent and quality of the assistance given. Where theassistance is significant, a significant reduction in sentence mayproperly be allowed;13 R v Accused, above n 4, at 402.14 R v Accused, above n 4, at 402.15 Mori v Police [2013] NZHC 225 at [19].(d) Any personal danger faced or likely to be faced by the offender. Whenco-operation is given at the cost of personal danger it deservesgenerous recognition.[36] In that particular case, it transpired on appeal that the appellant had offered togive evidence against her co-offender, although, in the end, that was not requiredbecause the co-offender pleaded guilty. Whata J considered the assistance wassignificant but did not consider that she was in danger as a consequence of offering togive evidence. He awarded a discount of 15 per cent.[37] At this stage, it is impossible to say whether the information provided by theappellant has been of utility to the Police. They certainly do not appear to have actedon it in any way, which suggests its utility is low. However, it is information aboutwhat would, if verified, be a serious crime. Clearly if it was of assistance, it wouldmerit a reduction.[38] Although Mr Rout has submitted that the appellant has put himself in dangerby giving his evidence, it is not clear why this is so. It does not appear to be evidencewhich would require this witness to testify in the future. Rather, it is information ofthe type that might fortify the police to continue their investigations which may leadto evidence of a crime. The information given would not, of itself, be relied on at trial.I therefore consider this witness will be fully protected by maintaining his anonymity.[39] All that really remains is whether a willingness to provide information to thepolice about a potentially serious offence, which is credible enough on its face towarrant further investigation, should be the subject of a discount. Unfortunately, I donot consider the information has reached a threshold where a discount is warranted.The Court must be careful, as a matter of policy, to differentiate between passing oninformation that may suggest an offence has been committed, and that which tangiblyor materially advances an investigation or a prosecution. That cannot always beknown until the Police have completed their assessment of that information.[40] In the present case, while it may be that the information does prove useful, thatposition has not yet been reached. It would be premature for this Court to reduce asentence simply because information of unknown quality has been passed on. For thisreason, I am not prepared to reassess the sentence to take account of assistance toauthorities.Conclusion[41] The sentence imposed on the appellant was not manifestly excessive, either asa result of the potential double counting or when the (limited) new evidence regardinghis ill health is considered. The information provided by the appellant is not ofsufficient utility to justify a reduction. Consequently, home detention is still notavailable and the appeal is dismissed.Suppression[42] At the hearing on 24 May, I made an order suppressing all details of theinformation given to the police by the appellant and suppressing the appellant's nameand identifying details. This judgment has been anonymised to reflect those orders.Solicitors:Better Lawyers Limited, ChristchurchRaymond Donnelly & Co., Christchurch